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June 25, 2024

New post-Rahimi SG filing urges SCOTUS to "grant plenary review to resolve Section 922(g)(1)’s constitutionality"

In this post yesterday, I highlighted why the Supreme Court's Second Amendment ruling in US v. Rahimi (basics here), did not make it any easier to figure out if the most prosecuted federal criminal gun prohibition, 18 USC § 922(g)(1), is or is not constitutionally sound in many (most?) cases.  This provision, often described as "felon in possession," formally prohibits all sorts of firearm activity and possession for anyone and everyone  who has "been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."  In the comments to the post, the discussion turned to some of the pending cases on this issue and speculated about what the Justices might do with these cases.

Helpfiully, a kind reader made sure I did not miss this new SCOTUS filing from US Solicitor General covering five pending cases challenging the constitutionality of the broad "felon in possession" prohibition.  Here is how this filing starts: 

These five cases present the question whether 18 U.S.C. 922(g)(1), the statute prohibiting a person from possessing a firearm if he has been convicted of “a crime punishable by imprisonment for a term exceeding one year,” ibid., violates the Second Amendment.  In each case, we asked this Court to hold the petition for a writ of certiorari pending its decision in United States v. Rahimi, No. 22-915 (June 21, 2024).  Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1)’s constitutionality.  In particular, the Court should grant the petitions in Doss, Jackson, and either Range or Vincent; consolidate the granted cases for briefing and argument; and hold the remaining petitions pending the resolution of the granted cases.  If the Court chooses not to take that course, it should grant, vacate, and remand (GVR) in Range and deny certiorari in the remaining cases.

The rest of the filing makes the case for resolving this constitutional question in short order, and I was pleased to see this paragraph highlighting the same recent data from the US Sentencing Commission that I flagged in my post:

Although Rahimi undermines the reasoning of the decisions holding Section 922(g)(1) invalid, the present conflict is unlikely to resolve itself without further intervention by this Court. And the costs of deferring this Court’s review would be substantial: Disagreement about Section 922(g)(1)’s constitutionality has already had widespread and disruptive effects. Out of the approximately 64,000 criminal cases reported to the Sentencing Commission in Fiscal Year 2022, more than 7600 involved convictions under Section 922(g)(1). See U.S. Sentencing Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses 1.  Those convictions accounted for nearly 12% of all federal criminal cases.  See ibid. Uncertainty about the statute’s constitutionality thus affects a significant proportion of the federal criminal docket.

Based on part on the vague (and sometimes contradictory) language in Rahimi, I agree wholeheartedly that "the present conflict is unlikely to resolve itself without further intervention" by the Supreme Court. For a variety of reasons, I am fearful that SCOTUS will GVR all these cases and try to keep dodging this issue. But it was obvious to me from the day Bruen was decided (see my post here from two years ago) that an originalist turn in Second Amendment jurisprudence served to make all broad felon-in-possession criminal statutes constitutionally suspect.  SCOTUS has let this critical post-Bruen issue — which impacts roughly one in every six (non-immigration) federal propecutions as well as the Second Amendment rights of up to 10% of the US population — develop (and fester) long enough.  The Justices will have to grant cert on this issue evetually, why not now?

A few (of many) prior related posts (recent and past):

June 25, 2024 at 10:44 AM | Permalink

Comments

I agree with the SG's view that we have enough records sufficiently developed, and enough of a hellscape of confusion looming out there, that the question should be settled. I doubt it will be settled as she wants it to be -- that is, I think the Court will go along with broader gun ownership than the present Administration wants on than the statute as it now stands provides, but one of the advantages of law is making clear to the citizens what the rules are, and that's where we are now.

Posted by: Bill Otis | Jun 25, 2024 11:44:03 AM

I agree with Mr. Otis. (Yes, that sometimes happens.) For instance if someone had told me that I would be forever giving up my right to possess a firearm, or even to be in the presence of an unsecured one, I would probably have insisted on a trial. As I've said, I was under the impression that I was "paying my debt to society," "putting this behind me," and "moving on with my life." Nobody told me that there would be *any* long-term consequences. I either didn't know that what I was pleading to was a felony, or I didn't know what felony meant.

Posted by: Keith Lynch | Jun 25, 2024 12:46:47 PM

Keith :

Thats a tough break, man. Prosecutors like most lawnorder conservatives talk a lot-- a HELL of a lot--about people having to come to grips with the consequences of your actions. Kent Schillinger's blog is even named for this principle. When running for office or debating 'rats theyll describe those consequences in loving detail, but when crafting a plea agreement, all of a sudden theyre a used car salesman in a checked blazer unloading a lemon.

This is maybe the only useful function a criminal defense attorney serves: letting the client know what the actual consequences of a conviction are, whether by plea or decision, since the other participants in our adversarial process suddenly become so keen to hide the salami.

Its of a piece with why President Trump rightly raises grievances with his mistreatment by witch hunting 'rats. Its nothing but one surprise after another. MAGA

Posted by: MAGA 2024 | Jun 25, 2024 1:16:29 PM

A few years ago, we had a homicide case where the verdict and judgment were set aside, after defense counsel learned while working on the appeal that one of the jurors was a convicted felon, but checked the box on the juror questionnaire that said he was not and was picked for the jury. This was an ugly case where a jilted 26-year-old girlfriend, Shayna Hubers, came over to her former boyfriend's [Ryan Poston] condo to beg him to take her back. He was a 29-year-old attorney, who told her that he wouldn't take her back, and that she needed to leave, because he was getting ready to go out on a date with a different woman. She shot hm several times in the face and killed him. At the first trial, she was found guilty and sentenced to 40 years, with parole eligibility after 20 years. When defense counsel discovered that a jury was a felon, that verdict was vacated and set aside. At the second trial, she was again convicted and sentenced to LIFE in prison, with parole eligibility after 2 years (based on the jury's recommendation, per Ky. law). But the point to this story is how some felons don't even realize that they are felons. This juror had pleaded guilty to felony non-support [not paying his child support obligations] and was sentenced to probation, conditioned on him paying his child support obligations while on probation. He never spent one day in jail or prison. He was a special needs student, who barely graduated from high school, and never went to college. He testified that he thought the conviction was a misdemeanor, not a felony. It was just an honest mistake. But imagine if he had acquired a gun, and was a felon in possession of a firearm, without realizing that he was a felon? The consequences could be dramatically different. And yet, I will bet that happens too often.

Posted by: Jim Gormley | Jun 25, 2024 1:40:51 PM

I for one would prefer to have the issue resolved. My fear, after Rahimi, is that the resolution will not actually resolve anything. I can easily see the majority drawing a line between violent and nonviolent felony. As a result, we will spend the next twenty years deciding whether a particular felony is a violent or nonviolent felony and maybe whether defendant has a right to a jury trial on the violent nature of the prior felony.

Posted by: tmm | Jun 25, 2024 1:57:19 PM

Bill: In response to my first post on this issue the day of the Bruen ruling, you seemed to scoff at the idea that Bruen rendered Section 922(g)(1) constitutionally suspect. In your words in that comment, "Prohibiting felons as a class from gun possession has a long, long historical pedigree." But I now perceive you to be suggesting SCOTUS will strike down 922(g)(1) as applied to some (many? most?) felons as a violation of the Second Amendment.

Am I reading your latest reading of the tea leaves right?

Posted by: Doug B | Jun 25, 2024 2:00:15 PM

Doug --

First, thanks for your reminder that your blog is not designed for insult, sneering, condescension, vulgarity and generally the sort of stuff you'd expect from a really rude seventh-grader. It would seem that, since then, a discussion of law has broken out. I'm not at all sure it will last, but, for as long as it does -- thank goodness. And thank you.

As to your present concern: I haven't gone back to look at it, but my memory is that, after Bruen, I thought it unlikely that 922(g)(1) would get tossed per se, and I think Rahimi supports that view. Before Bruen and Rahimi, I thought the Court would view a felony conviction as an imperfect but at least workable line between prohibition and non-prohibition. That is certainly more subject to doubt than pre-Bruen.

The Court seems headed to a conclusion, based not on policy per se but on its view that the historical basics of Bruen are correct, that the statutory ban on prohibition must be modified from (1) mere conviction of a felony to (2) behavior that reasonably presents a potential risk of future physical danger. As tmm correctly observes, that won't be anything like the end of litigation; it will more nearly resemble the beginning. But to say that is only to observe what is clear to lawyers who've been practicing for a while, to wit, that, as T. S. Eliot argued in his essay on Francis Herbert Bradley, "There are no lost causes because there are no gained causes."

Posted by: Bill Otis | Jun 25, 2024 2:31:47 PM

MAGA 2024 --

It's Kent Scheidegger, and his very worthwhile blog is Crime and Consequences.

Posted by: Bill Otis | Jun 25, 2024 2:33:22 PM

Thanks Bill. My apologies to Kent for my confusion. Ive been reading too much about the roaring twenties lately, foriegn and domestic LOL

And yes, thats the blogs name. In case youve forgotten, its the very second one on this sites blogroll under "Criminal Law Blogs", literally every page you see on this site. Unless maybe youre using a mobile in which case all bets are off hahaha

MAGA

Posted by: MAGA 2024 | Jun 25, 2024 4:28:32 PM

MAGA --

Kent, a friend of mine for decades, knows more about habeas than anyone I ever met. Very smart and very fair-minded.

Posted by: Bill Otis | Jun 25, 2024 10:49:59 PM

Gotta keep those gun rights alive for people who disagree with election outcomes and want to take matters into their own hands, right Federalist and MAGA

Posted by: Seriously? | Jun 26, 2024 2:01:40 PM

As Bill knows, sometimes the DOJ wants the law to be settled, even if it dislikes the line SCOTUS draws. That is the case here: AUSAs have better things to do than litigate on a felony-by-felony basis whether 922(g)(1) is constitutional. Like all those public corruption cases. OH WAIT - my bad. The Court is eviscerating public corruption law too.

Posted by: Da Man | Jun 26, 2024 2:04:19 PM

TMM poses a fascinating question -- will the violent nature of the felony be judged on by what the statute of conviction provides, or based on what the defendant did? That will not be a jury question but a question for the judge at the motion to dismiss stage. I sure hope that judges can examine the actual facts of the prior conviction....

Posted by: Da Man | Jun 26, 2024 2:05:51 PM

Seriously?! :

Damn right! Tree of liberty, blood of patriots and tyrants, and all that. See, you get it. MAGA

Posted by: MAGA 2024 | Jun 26, 2024 4:33:55 PM

The funniest and at same time dumbest moment from January 6, 2020 was when the capitol breachers told reporters this was their Independence Day. I had to remind a few of them that back in 1776, our forbears were trying to free themselves from the grip of a tyrant, not install one.

Posted by: Seriously? | Jun 26, 2024 4:54:14 PM

The funniest and at same time dumbest moment from January 6, 2020 was when the capitol breachers told reporters this was their Independence Day. I had to remind a few of them that back in 1776, our forbears were trying to free themselves from the grip of a tyrant, not install one.

Posted by: Seriously? | Jun 26, 2024 4:54:14 PM

Seriously!? :

President Trump was never going to be a tyrant to people who mattered, people who followed the law or were loyal. For scum who need to be criminally prosecuted or deported from our country, sure. But those losers always whine about being oppressed. You see their ilk every day in the articles posted on this blog.

If you suppose the Whiskey insurrectionists didnt view George Washington as a tyrant, I suggest you read your history again. MAGA

Posted by: MAGA 2024 | Jun 26, 2024 5:06:53 PM

Da Man, before last week, I would have thought that whether a prior felony was a violent felony was a judge question. But, after Erlinger, I am not sure how the Supreme Court will rule on that issue. Potentially, as with motions to suppress statements, it might be a preliminary issue for the judge but with the defendant having the right to present the issue to the jury.

Posted by: tmm | Jun 26, 2024 5:43:05 PM

TMM - you're mixing apples and oranges. Whether the statute is unconstitutional as applied is a question for the judge at the motion to dismiss stage. Factfinding about the prior offense doesn't raise the statutory max or min - it only tells the judge whether this person lost his Second Amendment rights. Although I would hate to see such a ruling, my assumption is that the SCOTUS will adopt a categorical approach saying that dangerousness depends on the statute of conviction (not on what the person did to violate it).

Posted by: Da Man | Jun 26, 2024 7:44:53 PM

"to people who mattered" - you mean the people chanting "white power"? The good folks in Charlottesville? Those people?

Posted by: Seriously? | Jun 26, 2024 7:46:25 PM

tmm --

Do you think Erlinger has any effect on Trump's appellate argument that Judge Merchan erred in refusing to instruct the jury that it had to find unanimously the object of Trump's mislabeling the hush money payments as legal expenses?

My take on the unanimity question, should you be inclined to have a look, is here: https://ringsideatthereckoning.substack.com/p/why-trumps-conviction-didnt-move

Thanks.

Posted by: Bill Otis | Jun 27, 2024 1:14:01 AM

You are Seriously? ignorant:

https://www.snopes.com/fact-check/trump-very-fine-people/

Posted by: TarlsQtr | Jun 27, 2024 1:14:12 AM

Da Man --

At some point, SCOTUS is going to have to ditch the categorical test in favor of actual reality. When that will happen is anyone's guess.

Also, should you care to take a crack at the question I just asked tmm, I would welcome your thoughts.

Posted by: Bill Otis | Jun 27, 2024 1:17:23 AM

Bill,

This is difficult question, as you know, from Shad v. Arizona, about means versus elements. But if I had to guess, I'd say that that's something on which the jury should have had to unanimously agree to convict. I mean, when federal prosecutors charge a conspiracy with multiple objects, the jury has to unanimously agree on which object. Why not here?

Da Man

Posted by: Da Man | Jun 27, 2024 9:48:37 AM

Bill,

I don't think Erlinger changes the outcome of the appeal in Trump's case. If it does, it potentially upsets a lot of the governing precedents around the country.

In my state, I know that for the past decade, our courts have been struggling (primarily in child sex cases) with the issue of jury unanimity. The current position in my state (which appears to be the position in New York) is that the jury needs to be unanimous about the offense but not about the means used to commit the offense.

To use the child sex cases which are driving the issue in my state as an example, if the child's testimony identifies distinct incidents (i.e. when just before Christmas and one in the Summer), the instructions must clearly identify the incident and the jury can't simply decide to return a conviction because, at some point, in time the defendant molested the child. But, to use a different example, since our law treats accomplices and principals as equally guilty, the jury need not decide which offender's gun fired the fatal shot and merely has to find that one of the two shooters fired the fatal shot.

The issue for the appeal is going to be whether it is enough for the jury to have decided unanimously that Trump intended to violate the New York election law by his fraudulent business entries or did the jury have to decide unanimously how Trump intended to violate the New York election law. To go back to my state, for burglary, it is enough to show that the defendant intended to steal something inside the house, we do not have to prove what he was planning to take (and, in many cases, the intent was to steal whatever he could find without knowing what he might find).

Posted by: tmm | Jun 27, 2024 10:48:11 AM

Da Man, I hope I am mixing apples and oranges. I don't think that it is something that the Supreme Court should do. But I see them on the path to maybe making whether a felony is violent into a jury issue especially as they have previously found that the defendant has to know that he is prohibited from owning a gun. I can see the argument that defense counsel will make, and the Supreme Court is taking a very broad view of the right to a jury and might just buy that argument.

Posted by: tmm | Jun 27, 2024 10:51:12 AM

TMM - the difference with the knowledge requirement from Rehaif, however, is that it was an (implied) element of the offense, and long-settled SCOTUS decisions say a defendant has a right to a BARD determination on anything that is an element of the offense. Whether the defendant's prior felony was sufficiently violent to disqualify him from owning a firearm is not an element of the offense - it would be a Second Amendment-based argument that the statute is unconstitutional. Under Fed. R. Crim. P. 12(b). that is a defect in the institution of the prosecution that not only should, but must be resolved before trial.

Posted by: Da Man | Jun 27, 2024 2:26:08 PM

Bill -

From your mouth to God's ear - let the categorical approach be taken outside, doused in gasoline, set ablaze, and then shot.

Posted by: Da Man | Jun 27, 2024 2:27:03 PM

Da Man --

"...when federal prosecutors charge a conspiracy with multiple objects, the jury has to unanimously agree on which object."

Do you happen to have a cite for that? I would have known at one time, but this is what happens when you get old.

Posted by: Bill Otis | Jun 27, 2024 6:37:15 PM

tmm --

"In my state, I know that for the past decade, our courts have been struggling (primarily in child sex cases) with the issue of jury unanimity. The current position in my state (which appears to be the position in New York) is that the jury needs to be unanimous about the offense but not about the means used to commit the offense."

I agree with that, but the question in Trump's appeal is whether his object in disguising the nature of the payments was so central to the prosecution's theory of culpability that it had more in common with proving an element (unanimity required) than with proving mere "means" (unanimity not required). I think that's a really hard question.

Posted by: Bill Otis | Jun 27, 2024 6:41:30 PM

Da Man, again I hope that you are correct. Ten years ago, I would have confidently agreed with you. But, after Erlinger, I worry about how this Court is interpreting the Sixth Amendment. And it is not only the federal rules that are at issue as states have similar statute and different procedural rules. I doubt that the Supreme Court will tie the right to a jury trial to procedural rules.

Bill, I think this goes back to the stealing as the intent of burglary example, the element is the intent to commit another crime. The prosecution's theory of the case is not an element, a dispute I often get into with defense attorneys who have evidence that contradicts the argument at trial but does not prove actual innocence. The issue is whether the State had to prove how the defendant intended to violate the underlying statute. I think that is an issue of state law rather than the Sixth Amendment. What I have seen about New York law is that the instruction seems to mesh with New York law, but I try to avoid making predictions about how another state's courts will interpret their statutes as I get in enough trouble with my own appellate courts changing the rules at times on appeal.

Posted by: tmm | Jun 27, 2024 7:35:21 PM

Bill, here you go. I'm getting old, too, so had to take a quick spin on the database:

The Sixth Amendment does not expressly require that jury verdicts be unanimous, but the Supreme Court has long held that jury unanimity is “one of the indispensable features” of federal criminal trials. Johnson v. Louisiana, 406 U.S. 366, 369–71, 92 S.Ct. 1635, 32 L.Ed.2d 162 (1972) (Powell, J., concurring). In practice, this means that “a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element [of the crime].” Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). For defendants charged with conspiracy, the object offense of the conspiracy is an element of the crime. See United States v. Caver, 470 F.3d 220, 232 (6th Cir.2006). Therefore, where a defendant is charged in a single count with a conspiracy to commit multiple crimes, the jury must unanimously decide which crime the defendant conspired to commit. See United States v. Long, 450 Fed.Appx. 457, 460 (6th Cir.2011); United States v. Capozzi, 486 F.3d 711, 717–18 (1st Cir.2007); United States v. Hughes, 310 F.3d 557, 561 (7th Cir.2002).


United States v. Tragas, 727 F.3d 610, 616 (6th Cir. 2013).

Posted by: Da Man | Jun 28, 2024 11:03:30 AM

Da Man --

You are in fact Da Man! Thanks very much.

Posted by: Bill Otis | Jul 1, 2024 11:14:10 AM

Sweet of you to say.

Posted by: Bill Otis | Jul 1, 2024 5:53:31 PM

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